Creative Commons: What is it? Should I Apply This to My Music?

Creative Commons has been described as being at the forefront of the copyleft movement, which seeks to support the building of a richer public domain by providing an alternative to the automatic “all rights reserved” copyright, dubbed “some rights reserved.

David Berry and Giles Moss have credited Creative Commons with generating interest in the issue of intellectual property and contributing to the re-thinking of the role of the “commons” in the “information age“. Beyond that Creative Commons has provided “institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely”

Example 1

Jamison Young is a full-time artist who has refused to sign up with big record labels. Instead, he believes in giving away his music for free using Creative Commons, and that has surprisingly helped him sell more records. Now, this may sound contradictory but Jamison says that by giving away your music for free downloads, it vastly increases the number of people who listen to your music and they in turn refer to their friends. This spreads word about the album and quite a few of them buy the album off the store shelves. This is actually a good technique to give a fighting chance against the most established artists.

Jamison has written, sung, produced and marketed his own album, called Shifting Sands of the Blue Car, the music for which is freely available for download on his website and at MySpace.

Jamison is an Australian now living Europe. Over the past year, he has performed in Australia, France, Germany, Czech Republic, Austria, Thailand, Switzerland and the U.S.

A Creative Commons license was first tested in court in early 2006, when podcaster Adam Curry sued a Dutch tabloid who published photos without permission from his Flickr page. The photos were licensed under the Creative Commons Non-Commercial license. While the verdict was in favour of Curry, the tabloid avoided having to pay restitution to him as long as they did not repeat the offense. An analysis of the decision states, “The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license.“

The six standard Creative Commons licences use from one to three licence elements, selected from four available elements: Attribution, NoDerivs, NonCommercial, and ShareAlike. Attribution is common to all six 2.0 licences. There are several 1.0 licences which don’t include the Attribution requirement, but Creative Commons decided to drop them in the 2.0 round of improvements, because stats indicated that 97-98 percent of CC-licenced works used the Attribution element.

Basically, Attribution says that the licensee must give you credit as the original author of the work. They can’t pass it off as their own, and if they make a derivative work (where permitted) they have to credit you for your contribution.

Which brings us to NoDerivs. If you don’t want anyone to make any use of your work beyond listening to it and copying and sharing it, then you need to choose a licence which specificies NoDerivs. Incidentally, the synchronisation of a music- or sound-based work to a moving image is considered derivative for the purposes of the licence!

The third element is NonCommercial. If you don’t want anyone to make money off of your work without first doing a deal with you, then you need to choose a licence which specifies NonCommercial. The Commons Deed simply states: “You may not use this work for commercial purposes.” The Legal Code, as you would expect, is more wordy on the subject of commercial use: the licensee can’t use the work “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” It also says file-sharing is OK, “provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.” In addition, depending on whether or not you select the NonCommercial element, the Legal Code has a section on performance, mechanical and web-casting rights and statutory royalties where you as licensee either waive or reserve the exclusive right to collect, either individually or via a relevant collecting society, any royalties for the work. Interestingly, Textone, while using a licence with a NonCommercial element, explicitly state at one point on their web site (but not next to the licence button) that they allow playback and mixing of their releases during a for-profit DJ performance “since so much of the underground scene is dependent on DJ/performance fees for subsistence.”

The final, fourth licence element is ShareAlike. In the concise terms of the Commons Deed, this means: “If you alter, transform, or build upon this work, you may distribute the resulting work only under a licence identical to this one.” So with an Attribution-ShareAlike licence, someone could use your work in their own and release the result commercially, but their work would then fall under the same licence. So you, or anyone else, could use their work in turn.

The CC Music Sharing licence has its own button (’Share Music’ CC) and its own Commons Deed which states that “The owner of this music retains his or her copyright but allows you to: download, copy, file-share, trade, distribute, and publicly perform (eg. web-cast) it.” It also specifices Attribution, NonCommercial and NoDerivs. In other words: share it but don’t sample it, alter it, or make money from it, and don’t take away my credit. The Legal Code is the usual Attribution-NonCommercial-NoDerivs 2.0 licence, but if you want to make it clear that your music’s shareable (and that’s all) then this is the one to use.

If you want to make a living out of your (copyright-owned) music, it’s more complicated. There’s no hard and fast business case for going the Creative Commons route. If you’re looking to build a fan base, it could be something to try. You could always dip a toe in the water by licensing one or two tracks. Read the Magnatune box on the previous page and look over their web site. CC-licensed music doesn’t have to mean no-pay music; also, look at the way the NonCommercial CC element feeds into a commercial licensing revenue stream on the site.

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